Fetter v. United States, Civ. No. 85-1552-E.
| Decision Date | 21 November 1986 |
| Docket Number | Civ. No. 85-1552-E. |
| Citation | 649 F. Supp. 1097 |
| Parties | Cathy FETTER, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of California |
Dennis A. Schoville, James A. Houston, Gray Cary Ames & Frye, San Diego, Cal., for plaintiff.
Michael Quinton, Asst. U.S. Atty., San Diego, Cal., for defendant.
Plaintiff Cathy Fetter filed her complaint against the United States on July 3, 1985. She seeks damages of $2,000,000 for injuries allegedly caused by the negligence of several military doctors at the Camp Pendleton Naval Hospital. The trial is set for December 9, 1986, and the United States now moves for an order of partial summary judgment.
On March 18, 1984, plaintiff delivered a healthy baby. This was plaintiff's first child and, due to complications, the birth was completed by Caesarean section.
Shortly after the delivery, plaintiff experienced six separate episodes of post-partum hemorrhaging. Upon each episode, plaintiff went to the Camp Pendleton Naval Hospital for treatment.
Plaintiff's treatment included a dilation and curettage operation, which allegedly caused a lacerated cervix and a punctured bladder. During her last few episodes of hemorrhaging, plaintiff was hospitalized. Finally, on May 1, 1984, the doctors at Camp Pendleton Naval Hospital performed a complete hysterectomy, preventing plaintiff from bearing any more children.
Plaintiff alleges that the treatment she received was negligent, and that the hysterectomy was performed without informed authorization or consent. Her allegations are actionable against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 (1982).
The United States moves for an order of partial summary judgment, and for a pretrial determination of the admissibility of certain evidence.
Summary judgment is a proper remedy when there are no genuine issues of material fact and the moving party is entitled to prevail as a matter of law. Fed.R. Civ.P. 56(c). The burden is on the moving party to demonstrate the absence of a genuine issue of material fact. If met, the opposing party must come forward with specific factual allegations in contradiction. Semegen v. Weidner, 780 F.2d 727, 732 (9th Cir.1985). On the issues included in this motion, there are no genuine issues of material fact and summary judgment is appropriate.
The United States seeks an order of partial summary judgment on the following three grounds: (1) Cal.Civ.Code § 3333.2 limits plaintiff's recovery of noneconomic damages to $250,000, (2) Cal.Civ.Proc.Code § 1029.8 does not apply to mandate treble damages against the United States, and (3) plaintiff cannot recover the cost of future health insurance. In addition, the United States requests an in limine ruling that plaintiff may not introduce evidence that her husband was transferred to Virginia and of an alleged assault and battery to plaintiff when she entered the Camp Pendleton Military Reservation for treatment.
The United States, as sovereign, is immune from suit "except to the extent that it has unequivocally consented to litigation." LaBarge v. County of Mariposa, 798 F.2d 364, 366 (9th Cir.1986). The Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 (1982) (hereinafter "FTCA"), however, constitutes a limited waiver of that sovereign immunity. LaBarge, 798 F.2d at 366.
Section 1346(b) of the FTCA is the jurisdictional provision investing the district court with exclusive jurisdiction over "civil actions on claims against the United States" for personal injuries caused by a federal employee's negligence. In addition, section 1346(b) states that liability attaches against the United States "if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."
The specific provision limiting the liability of the United States is section 2674. It states:
The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. (emphasis added).
Subsection (c) of the code defines a health care provider as "any person licensed or certified" pursuant to the various state licensing statutes. Cal.Civ.Code § 3333.2(c).
Based on the FTCA analogy to a private person in like circumstances and Cal.Civ. Code § 3333.2, the United States asserts that its liability in this case for noneconomic damages must be limited to $250,000. Three arguments are advanced: First, the Ninth Circuit has impliedly ruled that Cal. Civ.Code § 3333.2 applies to the United States. Second, the Eleventh Circuit Court of Appeals expressly applied a Florida statute limiting damages to the United States under the FTCA. Third, state workers' compensation and recreational use statutes apply to the United States under the FTCA.
In Hoffman v. United States, 767 F.2d 1431 (9th Cir.1985), the plaintiff sought to recover for medical malpractice allegedly arising out of treatment received at the Veteran's Administration Hospital. Below, the district court held that Cal.Civ.Code § 3333.2 was an unconstitutional violation of the equal protection clause. The Ninth Circuit reversed, finding that the statute had a rational basis, and remanded the case to the district court "to amend the judgment to limit the noneconomic damages against the United States to $250,000." Id. at 1437. This holding impliedly supports applying Cal.Civ.Code § 3333.2 to the United States. Plaintiff emphasizes in opposition that Hoffman determined only that section 3333.2 was constitutional; it did not apply the statute to benefit the United States.
Id. at 863. Plaintiff in this case poses the same argument, without successfully distinguishing Scheib.
The holding in Scheib was premised on the Eleventh Circuit's interpretation of the United States' liability under the FTCA and workers' compensation and recreational use statutes. Although the United States addressed this line of reasoning, it failed to cite a recent and relevant Ninth Circuit case. LaBarge, 798 F.2d at 366. The plaintiff in LaBarge was the decedent of a Secret Service agent. The decedent was killed in an automobile that collided with a County patrol car. Suit was filed against the County, which then filed a third party action. The district court eventually held that the United States must indemnify the County for 30% of the plaintiff's award.
The United States argued that it should be exempt from contribution because "a private individual under like circumstances `would be a private employer covered by California' workmen's compensation law." Id. In California, private employers are immune because of statutory exclusive liability.
The Ninth Circuit agreed, finding that the United States could benefit from the statutory immunity. The court stated:
Second, the County contends that because the United States has not complied with the terms of California's workmen's compensation law, it is not sufficiently "like" a covered private employer to take advantage of the exclusive liability provision.... This argument misconceives the operation of the "like circumstances" standard prescribed in 28 U.S.C. § 2674. As the Supreme Court emphasized in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the statutory language refers not to private persons under "the same circumstances," but to those under similar circumstances. See id. at 64, 76 S.Ct. at 124.
LaBarge, 798 F.2d at 367. Extending the reasoning of LaBarge to this case suggests that medical military officers are under similar circumstances to civilian doctors, and that the limitation in Cal.Civ.Code § 3333.2 controls the liability for noneconomic damages of both.
Plaintiff opposes summary judgment on this issue by arguing that (1) applying Cal. Civ.Code § 3333.2 to the United States does not further its legislative purposes, (2) that military medical officers are not within the statutory definition of a "health care provider," and (3) military medical officers are not subject to the state's licensing authority, which should preclude them from receiving the protection and benefits of section 3333.2.
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Carter v. US (Veterans Administration), S90-448 (RLM).
...at 1406. This holding, however, was not extended to medical malpractice cases against the federal government. In Fetter v. United States, 649 F.Supp. 1097 (S.D.Cal.1986), the court Plaintiff interprets Gallea to hold that an entity may not benefit from a protective statute unless it is like......